Ogden and Ogden - [2012] FMCAfam 616

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OGDEN & OGDEN

[2012] FMCAfam 616

FAMILY LAW – Interim parenting orders – unilateral interstate relocation.

Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 61DB, 65DAA, 65DAB, 69ZT
Evidence Act 1995, s.140(2)(c)

Cales & Cales, [2010] FamCAFC 237, (2010) 44 Fam LR 376, (2010) FLC 93-459
Deiter & Deiter, [2011] FamCAFC 82
Goode v Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296

MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93,424

Applicant:

MR OGDEN

Respondent:

MS OGDEN

File Number:

PAC 5304 of 2011

Judgment of:

Halligan FM

Hearing dates:

25 May & 1 June 2012

Date of Last Submission:

1 June 2012

Delivered at:

Parramatta

Delivered on:

27 June 2012

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Maddox

Solicitors for the Respondent:

Family Law Group Solicitors

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission of New South Wales

ORDERS

Pending further order, the parents shall have equal shared parental responsibility for the children [W] born [in] 2000, [X] born [in] 2002, [Y] born [in] 2005 and [Z] born [in] 2006.
Pending further order, the children shall live with the mother.
The mother shall cause the children to return to live in New South Wales within 30 kilometres of [W] School by 15 July 2012, and thereafter, pending further order, both parties are restrained from moving the children’s place of residence outside that area without the written consent of the other parent or a court order.
It is a condition of the preceding order that from the date the mother complies with that order, in addition to child support as assessed from time to time, the father pay as and when they fall due all payments on the loan in relation to the motor vehicle in the mother's possession and all of the children’s school expenses in New South Wales, including but not limited to-
(a)Uniforms;
(b)Stationery;
(c)Books;
(d)Excursions; and
(e)Camping trips.
If the father fails to comply with the preceding order, the restraint on the mother not changing the children’s place of residence more than 30 kilometres from [W] School shall thereupon be suspended.
The mother shall notify the father of the date the children will return to live in New South Wales and of the address at which they will live under the preceding order not less than 48 hours before they do so.
Pending further order, the father shall provide the mother with a copy of his current work roster within 48 hours and thereafter shall provide the mother with each new work roster within 48 hours of receiving it.
Pending further order, the children shall spend time with the father-
(a)During each of the father's rostered off periods, from 5.00 pm on the first rostered day off to 5.00 pm on the third rostered day off, commencing in the father's first rostered off period that begins after…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ogden and Ogden

Details

AGLC: Ogden and Ogden [2012] FMCAfam 616
Case: [2012] FMCAfam 616
Decision Date: 27 June 2012

CaseChat Overview and Summary

The case of Ogden and Ogden involves a dispute between the parents of four children over parenting arrangements and related issues. The parents had been in a relationship but had separated, leading to the mother relocating with the children to New South Wales. The father sought orders regarding the children's residence, contact, and financial contributions. The court was required to determine the best interests of the children in terms of their living arrangements, contact with each parent, and financial support. Additionally, the court needed to address the father's concerns about alcohol consumption and exposure to sexual conduct during his contact time with the children.

The court considered evidence from both parents and expert witnesses, focusing on the children's needs and the capacity of each parent to meet those needs. The judge found that equal shared parental responsibility was in the children's best interests, and that the children should reside with the mother while the father had specified contact times. The court also concluded that the father's concerns about alcohol consumption and exposure to sexual conduct were unfounded and did not warrant restrictions beyond the standard obligations of care and protection. The court further ordered the father to contribute financially to the children's education and living expenses.

The final orders of the court provided for equal shared parental responsibility for the children, with the children to reside with the mother within 30 kilometres of a particular school. The father was granted specific contact times, including during his days off and half of the school holidays, with additional provisions for special occasions. Financial contributions from the father were detailed, including child support and expenses related to the children's education and living arrangements. The court also included provisions for communication between the parents and the children, and restrictions on alcohol consumption and exposure to sexual conduct during the father's contact times. Both parents were restrained from denigrating each other and discussing the court proceedings with the children.

Orders

Orders of the court

Pending further order, the parents shall have equal shared parental responsibility for the children [W] born [in] 2000, [X] born [in] 2002, [Y] born [in] 2005 and [Z] born [in] 2006.

Pending further order, the children shall live with the mother.

The mother shall cause the children to return to live in New South Wales within 30 kilometres of [W] School by 15 July 2012, and thereafter, pending further order, both parties are restrained from moving the children’s place of residence outside that area without the written consent of the other parent or a court order.

It is a condition of the preceding order that from the date the mother complies with that order, in addition to child support as assessed from time to time, the father pay as and when they fall due all payments on the loan in relation to the motor vehicle in the mother's possession and all of the children’s school expenses in New South Wales, including but not limited to-

(a) Uniforms;

(b) Stationery;

(d) Excursions; and

(e) Camping trips.

If the father fails to comply with the preceding order, the restraint on the mother not changing the children’s place of residence more than 30 kilometres from [W] School shall thereupon be suspended.

The mother shall notify the father of the date the children will return to live in New South Wales and of the address at which they will live under the preceding order not less than 48 hours before they do so.

Pending further order, the father shall provide the mother with a copy of his current work roster within 48 hours and thereafter shall provide the mother with each new work roster within 48 hours of receiving it.

Pending further order, the children shall spend time with the father-

(a) During each of the father's rostered off periods, from 5.00 pm on the first rostered day off to 5.00 pm on the third rostered day off, commencing in the father's first rostered off period that begins after the children return to live in New South Wales;

(b) For half of all New South Wales school holidays as agreed, or failing agreement for the second half in 2012 and each alternate year thereafter and for the first half in each other year;

(c) Notwithstanding any other provision of these orders, from 9.00 am on 24 December to 2.00 pm on 25 December in 2012 and each alternate year thereafter, and from 2.00 pm on 25 December to 7.00 pm on 26 December in 2013 and each alternate year thereafter;

(d) On each of the children’s birthdays, from 4.00 pm to 6.00 pm if a school day and otherwise from 2.00 pm to 6.00 pm, provided the father is not rostered to work during that time; and

(e) On the Father's Day weekend, if not otherwise spending time with the father, for such period between 5.00 pm on the Saturday before Father's Day and 5.00 pm on Father's Day as the father shall notify the mother in writing not less than four weeks in advance.

Pending further order-

(a) The father's time with the children under the preceding order is suspended from 5.00 pm on the Saturday before Mother's Day to 5.00 pm on Mother's Day.

(b) If the children are spending time with the father under the preceding order other than para.(d) thereof on any of the children’s birthdays, the father's time is suspended from 4.00 pm to 6.00 pm if a school day and otherwise from 2.00 pm to 6.00 pm.

10.

Pending further order, the father shall collect the children from the mother's residence at the commencement of his time with the children and the mother shall collect the children from the father's residence at the conclusion of his time.

11.

Pending further order, the father may communicate with the children by telephone between 7.00 pm and 7.30 pm on the first day in each rostered on period and between 5.30 pm and 6.00 pm on the third day in each rostered on period.

12.

Pending further order, both parties shall keep the other informed of their residential address and telephone numbers, and shall notify the other not less than 7 days before the event of any change of address and within 24 hours after any change of telephone number.

13.

Pending further order, the father is restrained from-

(a) Consuming alcohol when the children are with him and during the period of 12 hours preceding the children coming into his care; and

(b) Exposing any of the children to sexual conduct.

14.

Pending further order, each of the parties is restrained from-

(a) Denigrating the other parent or members of the other parent’s family to or in the presence or hearing of any of the children and shall immediately remove the child or children from the presence and hearing of any other person who does so;

(b) Discussing these court proceedings or issues raised in them with or in the presence or hearing of any of the children and shall immediately remove the child or children from the presence and hearing of any other person who does so;

(c) Causing or permitting any of the children to see or read any document filed in or prepared for these proceedings and from causing or permitting any other person to do so; and

(i) Using the children to pass messages between the parents in relation to parenting arrangements or issues.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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